Government argues against Cuban migrant appeals

The appeal hearing involving seven Cuban migrants seeking asylum in Cayman continued into late Tuesday afternoon and Wednesday morning, with the Cubans’ attorney, Alastair David, and Crown counsel Michael Smith arguing over whether the Immigration Appeals Tribunal was correct in denying the migrants’ applications for asylum.

Mr. David has argued that the Cubans did not receive a fair hearing of their asylum applications because they did not receive legal aid and because the Immigration Appeals Tribunal did not sufficiently explain its reasons for denying their applications. The tribunal needs to spell out in its decisions all of the factors it considered, otherwise the Cubans will not have sufficient information to know if they can appeal the decision, he said.

On Tuesday afternoon, Mr. David went into further detail about his clients’ background, and why they should qualify as political refugees.

One client, he said, was arrested and jailed for five days for distributing CDs in Cuba with political messages against the government there.

According to Mr. David, when the Cuban migrant put this fact in his asylum application, the Immigration Department did not find the punishment against him to be “disproportionate” – one test for granting someone asylum is whether punishments are proportionate to the crimes committed in the migrant’s country.

“We’ve got a civil servant in the Cayman Islands saying, ‘What’s wrong with arresting people for protesting?’” Mr. David said.

During the hearing, Mr. David also said that one of the Cubans admitted to the tribunal that he has a conviction for drug trafficking. However, he said, this honesty by his client shows that the tribunal should have believed his other statements about being politically persecuted.

On Wednesday morning, Crown counsel Smith made his arguments, starting with acknowledging that Cuba indeed has an oppressive government – a “repressive Marxist dictatorship,” he called it.

However, not everyone who leaves Cuba does so for political reasons, he said. Some leave for economic reasons, including one appellant who apparently said he was planning on going to Honduras and traveling to the U.S. from there.

“Furthermore,” Mr. Smith said, “simply not liking your country’s government does not make you, a priori, a refugee. Otherwise, Cayman would be full of U.K. asylum seekers fleeing Brexit and U.S. asylum seekers fleeing Trump.”

Mr. Smith then addressed Mr. David’s argument that the Immigration Appeals Tribunal did not sufficiently explain its reasons for denying the Cubans’ applications.

While admitting that the three- to four-page decisions – compared to decisions that are typically 20 pages or more in the U.K. – are not “exemplars of judicial drafting,” he said that they were sufficient in explaining why the Cubans should be denied asylum.

For the decisions to be unlawful, the Cubans would have to prove that they were “substantially prejudiced” by the lack of details in the judgments, Mr. Smith said.

Moreover, having the Immigration Appeals Tribunal provide more details would not have altered their decisions, he said.

Mr. Smith also addressed Mr. David’s argument that the Cubans did not receive a fair hearing because they were denied legal aid.

He said the Cubans were provided translators for the hearings so they could understand what was going on, and that three of them were represented by a Cuban doctor who lives here.

However, Mr. David replied that the Cubans were all detained around the time of their hearings, and therefore could not access libraries to prepare for their cases. Even if they had access to libraries, they cannot read the English law textbooks, he said.

The hearing is scheduled to conclude by the end of Wednesday.

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